Attorney General Merrick Garland on Friday named a special counsel to oversee the criminal probe of Donald Trump’s possible mishandling of classified documents at his Florida home and key aspects of the sprawling Jan. 6 case, acknowledging the political sensitivity of investigating a former president who is again seeking office.
Garland said “extraordinary circumstances” — namely Trump’s candidacy and President Biden’s stated intention to run for reelection — necessitated the appointment of an independent prosecutor to oversee the investigations, which are focused on alleged high-level breaches of national security and could place Trump in legal peril unprecedented for a one-time commander in chief.
“Based on recent developments, including the former president’s announcement that he is a candidate for president in the next election, and the sitting president’s stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a special counsel,” Garland said.
A special counsel appointment “is the right thing to do,” the attorney general continued. “Mr. Smith is the right choice to complete these matters in an even-handed and urgent manner.”
Both Garland and Smith pledged that the appointment will not slow down the investigations, suggesting that the career prosecutors already on those cases would continue to work them.
“I intend to conduct the assigned investigations, and any prosecutions that may result from them, independently and in the best traditions of the Department of Justice. The pace of the investigations will not pause or flag under my watch,” Smith said in a written statement. “I will exercise independent judgement and will move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate.”
A few hours later, Trump denounced the special counsel as politically motivated.
“This horrendous abuse of power is the latest in a long series of witch hunts,” he told attendees at a black-tie gala for a sympathetic think tank that was held at Mar-a-Lago, Trump’s Florida home and private beach club. “The corrupt and highly political Justice Department just appointed a super-radical left prosecutor.”
Garland signed a two-page order authorizing the special counsel to take over “the ongoing investigation into whether any person or entity violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021, as well as any matters that arose or might arise directly from this investigation.”
The order said the special counsel will not be responsible for cases involving those who were physically present at the Capitol on Jan. 6 — leaving those to the U.S. Attorney’s office in Washington, D.C., which has charged more than 900 people so far.
Friday’s order also authorizes Smith to pursue the investigation of possible mishandling of national defense secrets at Mar-a-Lago, as well as possible obstruction or destruction of government records related to that probe. Smith is authorized to investigate any potential cases that arise from that investigation and to refer to other federal prosecutors any potential cases that may fall outside the scope of his work.
The Mar-a-Lago criminal investigation began this spring, after months of disagreement between Trump and the National Archives and Records Administration over boxes of documents that followed Trump from the White House to Mar-a-Lago, his Florida residence and private club. Court papers say more than 300 documents marked classified were eventually recovered from Trump’s home, more than 100 of them taken during an Aug. 8 FBI search of the property. Some contained extremely sensitive government secrets.
The longer-running Jan. 6 case, meanwhile, has moved beyond the pool of people who directly took part in the bloody riot at the U.S. Capitol. For months, prosecutors have been scrutinizing the fundraising, organizing, and apocalyptic rhetoric that preceded that violent assault on the seat of government, looking also at failed efforts to authorize alternate slates of electors so Trump could be named the winner of the 2020 election.
The decision to appoint a special counsel, first reported by the Wall Street Journal, comes as congressional Republicans prepare to assume a thin majority in the House of Representatives. They have long denounced both probes, and pledged to investigate the Justice Department and the FBI’s handling of all politically sensitive cases, from Jan. 6 to Mar-a-Lago to the investigation of the finances of President Biden’s son Hunter.
Many other political candidates have been investigated while running for office without the appointment of a special counsel — including Hillary Clinton, Trump’s Democratic opponent in 2016. The FBI investigation into Clinton’s use of a private email server for government matters was opened in mid-2015, continued throughout the primaries, was closed just before the nominating convention and then publicly reopened less than two weeks before Election Day.
Some former Justice Department officials had urged the attorney general not to name a special counsel for the Trump probes, arguing it would delay charging decisions deep into the 2024 election cycle, which could be damaging to both the political process and the department. Other former federal prosecutors contend that Garland has little choice but to make such an appointment, since this is the type of scenario in which the special counsel regulations were meant to be applied.
Robert S. Mueller III — appointed by Trump deputy attorney general Rod Rosenstein — spent about two years as special counsel probing alleged links between Russian election interference and the Trump campaign, starting in May 2017. Special counsel John Durham was appointed more than two years ago by a different Trump attorney general, William P. Barr, to continue investigating the origins of that Russia investigation; Durham is still serving as special counsel and is expected to end his work in coming months.
Justice Department regulations say the attorney general will appoint a special counsel, essentially a prosecutor handpicked to tackle a particular criminal investigation, if a case meets several criteria, specifically: that an investigation is warranted in a way that presents a conflict of interest for the Justice Department “or other extraordinary circumstances,” and that under those circumstances “it would be in the public interest” to appoint a special counsel to handle the case.
Critically, a special counsel would still report to the attorney general, who would have the ultimate authority on what to do about the evidence.
Garland made that point earlier this year when asked at a Senate hearing why he had not appointed a special counsel to investigate Hunter Biden.
“This is a fact and law determination in each case,” Garland told the lawmakers, adding that special counsels “are also employees of the Justice Department” — meaning they still report to the attorney general.
Smith’s career as a prosecutor began in Manhattan in the early 1990s, where he earned a reputation as a hard worker. “I don’t think I was very talented, but you field a lot of groundballs, you’re a good shortstop,” Smith once told the Associated Press about those early days.
He went on to spend nearly a decade as a federal prosecutor in Brooklyn, before becoming a war-crimes prosecutor at the International Criminal Court in 2008. Smith eventually returned to the Justice Department, taking over the Public Integrity Section at a time when it had been battered by an embarrassing reversal of the conviction of Sen. Ted Stevens (R-Alaska). Four years ago, he returned to The Hague to investigate war crimes in Kosovo.
Though the special counsel appointment begins immediately, Smith was not at Friday’s announcement, due to a recent bike accident that required knee surgery.
Grand juries in Washington, D.C. have been hearing evidence in both investigations that Smith inherits, but he faces critical decisions about how to continue gathering evidence, and who else to call to give testimony under oath about their interactions with Trump. The Mar-a-Lago investigation, in particular, has accelerated in recent months.
One witness, a former White House valet, has told investigators that he moved boxes of documents out of a basement storage room at Trump’s direction — after Trump received a subpoena demanding the return of any papers with classified markings, according to people familiar with the matter. The people, who like others interview by The Post spoke on the condition of anonymity to discuss an ongoing investigation, said the former valet’s account was supported by security camera footage from the facility that showed him moving boxes.
The witness account and video footage led federal investigators to suspect that Trump was still withholding secret government papers even after his lawyers turned over 38 classified documents in response to the May subpoena.
FBI agents in August found another 103 classified documents, including 18 marked top secret. Some of the documents contained extremely sensitive information about Iran’s missile systems, intelligence in China, and the nuclear capabilities of a foreign country, people familiar with the matter have told The Post.
In the Jan. 6 investigation, prosecutors have questioned two top aides to former vice president Mike Pence and have asked witnesses about their conversations with Trump, his lawyers, and others in his inner circle who sought to substitute Trump allies for certified electors from some states Joe Biden won, according to two people familiar with the matter. Both spoke on the condition of anonymity to discuss an ongoing investigation.
The prosecutors have asked hours of detailed questions about meetings Trump led in December 2020 and January 2021; his pressure campaign on Pence to overturn the election results; and what instructions Trump gave his lawyers and advisers about fake electors and sending electors back to the states, the people said. Some of the questions focused directly on the extent of Trump’s involvement in the fake-elector effort led by his outside lawyers, including John Eastman and Rudy Giuliani, these people said.
In addition, Justice Department investigators in April received phone records of key officials and aides in the Trump administration, including his former chief of staff, Mark Meadows, according to two people familiar with the matter.
Michael Scherer contributed to this report.